In an
action to recover damages for personal injuries, the
plaintiff appeals, as limited by his brief, from so much of
an order of the Supreme Court, Queens County (Livote, J.),
entered September 16, 2015, as, upon reargument, adhered to
so much of a determination in an order of the same court
entered December 8, 2014, as granted those branches of the
defendants' motion which were for summary judgment
dismissing the causes of action alleging violations of Labor
Law §§ 200 and 240(1) and common-law negligence.

ORDERED
that the order entered September 16, 2015, is modified, on
the law, by deleting the provision thereof, upon reargument,
adhering to so much of the original determination in the
order dated December 8, 2014, as granted that branch of the
defendants' motion which was for summary judgment
dismissing the cause of action alleging a violation of Labor
Law § 240(1), and substituting therefor a provision,
upon reargument, vacating that portion of the original
determination, and thereupon, denying that branch of the
motion; as so modified, the order is affirmed insofar as
appealed from, without costs or disbursements.

The
plaintiff, a carpenter apprentice employed by Nastasi &
Associates, Inc., alleges that on May 15, 2010, he was
injured at a construction site owned by the defendant 400
Fifth Realty, LLC, developed by the defendant Bizzi &
Partner Development, and managed by the defendant Pavarini
McGovern, LLC (hereinafter collectively the defendants).
While in the course of his work, the plaintiff was pushing a
dolly loaded with approximately 16 pieces of sheetrock up a
temporary plywood ramp. The sheetrock pieces were
approximately 10-feet-longby4-feet-wideand 1/2 or 3/4 of an
inch thick. The base of the ramp was approximately 4 to 5
feet off the ground. As the plaintiff was using momentum to
push the dolly up the ramp, the dolly suddenly stopped. The
plaintiff attempted to push the dolly forward using
additional force, but the dolly rolled backward down the
ramp. As it rolled down, the dolly struck the plaintiff,
causing his body to hit an adjacent concrete wall and fall
onto the ramp. The dolly then struck a wall, which caused two
pieces of sheetrock to break and fall down onto the
plaintiff.

The
plaintiff commenced this action asserting causes of action
alleging common-law negligence and violations of Labor Law
§§ 200, 240(1), and 241(6). Subsequently, the
defendants moved for summary judgment dismissing the
complaint and all cross claims. The Supreme Court granted
those branches of the motion with respect to the common-law
negligence and Labor Law §§ 200 and 240(1) causes
of action. The plaintiff moved for leave to reargue and, upon
reargument, the Supreme Court adhered to its original
determination. On appeal, the plaintiff contends that the
court erred in awarding summary judgment with respect to the
causes of action alleging common-law negligence and
violations of Labor Law §§ 200 and 240(1).

Labor
Law § 240(1) "imposes absolute liability on
building owners and contractors whose failure to provide
proper protection to workers employed on a construction site
proximately causes injury to a worker" (Wilinski v
334 E. 92nd Hous. Dev. Fund Corp.,18 N.Y.3d 1, 7).
"Whether a plaintiff is entitled to recovery under Labor
Law § 240(1) requires a determination of whether the
injury sustained is the type of elevation-related hazard to
which the statute applies" (id. at 7; see Rocovich v
Consolidated Edison Co.,78 N.Y.2d 509, 513). "The
dispositive inquiry does not depend upon the precise
characterization of the device employed or upon whether the
injury resulted from a fall, either of the worker or of an
obj ect upon the worker. Rather, the single decisive question
is whether plaintiffs injuries were the direct consequence of
a failure to provide protection against a risk arising from a
physically significant elevation differential"
(Runner v New York Stock Exch., Inc.,13 N.Y.3d 599,
603; see Wilinski v 334 E. 92nd Hous. Dev. Fund
Corp., 18 N.Y.3d at 10). In this regard, in addressing
falling object cases, as here, the relevant inquiry is
"whether the harm flows directly from the application of
the force of gravity to the object" (Runner v New
York Stock Exchange, Inc., 13 N.Y.3d at 604).

Contrary
to the defendants' contentions, the elevation
differential between the worker and the loaded dolly while on
a four-to-five-foot-high ramp "cannot be viewed as de
minimis, particularly given the weight of the object and the
amount of force it was capable of generating" (id. at
603; see Aramburu v Midtown W. B, LLC, 126 A.D.3d
498, 499-500; Treile v Brooklyn Tillary, LLC, 120
A.D.3d 1335, 1338; McCallister v 200Park, L.P., 92
A.D.3d 927, 928-929; Gutman v City of New York, 78
A.D.3d 886, 887). Indeed, in opposition to the
defendants' original motion, the plaintiffs expert
averred that the 16 pieces of sheetrock loaded onto the dolly
weighed more than 1000 pounds. Here, given the amount of
force generated by the dolly rolling uncontrollably down the
temporary ramp, the defendants failed to establish, prima
facie, that Labor Law § 240(1) is not applicable on the
ground that the injury did not result from a gravity-related
or elevation-related hazard (see Runner v New York Stock
Exchange, Inc., 13 N.Y.3d at 603; Landi v SDS
William St., LLC,146 A.D.3d 33, 38; Aramburu v
Midtown W. B, LLC, 126 A.D.3d at 499; Treile v
Brooklyn Tillary, LLC, 120 A.D.3d at 1337-1338;
McCallister v 200 Park, L.P., 92 A.D.3d at 929;
Gutman v City of New York, 78 A.D.3d at 887).

The
defendants also failed to establish, prima facie, that no
safety device of the kind enumerated in the statute would
have prevented the accident under the circumstances (see
Ortiz v Varsity Holdings, LLC,18 N.Y.3d 335, 339;
Aramburu v Midtown W. B, LLC, 126 A.D.3d at 499).

Accordingly,
upon reargument, the Supreme Court erred in granting that
branch of the defendants' motion which was for summary
judgment dismissing the plaintiffs cause of action alleging a
violation of Labor Law § 240(1).

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.